United States v. Mendez-Henriquez

• Decision Date: 30 January 2017
• Docket Number: No. 15-41551,15-41551
• Citation: 847 F.3d 214
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Eder Vladimir MENDEZ-HENRIQUEZ, also known as Eder Vladimir Henriquez, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

847 F.3d 214

UNITED STATES of America, Plaintiff-Appellee

v.Eder Vladimir MENDEZ-HENRIQUEZ, also known as Eder Vladimir Henriquez, Defendant-Appellant

No. 15-41551

United States Court of Appeals, Fifth Circuit.

Filed January 30, 2017

Amanda Brooke Harris, U.S. Department of Justice, Washington, DC, Anna Elizabeth Kalluri, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, H. Michael Sokolow, Assistant Federal Public Defenders, Evan Gray Howze, John Moreno Parras, Federal Public Defender's Office, Houston, TX, for Defendant-Appellant.

Before JONES, BARKSDALE, and COSTA, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The one issue on appeal is whether a prior offense constitutes a crime of violence (COV) for imposing an enhancement under the Sentencing Guidelines. In challenging his sentence for illegal reentry after removal, in violation of 8 U.S.C. § 1326, Eder Vladimir Mendez-Henriquez asserts his sentence was erroneously enhanced under Guideline § 2L1.2, based on the district court's concluding he committed a COV; he maintains his 2008 conviction of California Penal Code § 246 —for maliciously and willfully discharging a firearm at an occupied motor vehicle—does not qualify as a COV. AFFIRMED.

I.

Mendez was arrested in Texas on 10 May 2015. He admitted he entered the country illegally after deportation in 2011 and 2014, and pleaded guilty to illegal reentry after removal.

Mendez' presentence investigation report (PSR) recounted his criminal background, including the 2008 conviction under California Penal Code § 246 for maliciously and willfully discharging a firearm at an occupied motor vehicle, for which he received a five-year sentence. Section 246 provides:

Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle , occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year.

As used in this section, "inhabited " means currently being used for dwelling purposes, whether occupied or not.

Cal. Penal Code § 246 (2008) (emphasis added). In that regard, a felony complaint charged Mendez, pursuant to § 246, with "willfully, unlawfully, and maliciously discharg[ing] a firearm at an occupied motor vehicle". The PSR recommended the offense qualified as a COV under Guideline § 2L1.2, which imposes a 16-level sentence enhancement. See U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Guideline § 2L1.2 defines a crime of violence as either one included in a list of enumerated offenses, or "any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another". U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). As the parties agree, § 246 is not one of the enumerated offenses. Therefore, for the COV-enhancement to apply, "the use, attempted use, or threatened use of physical force against the person of another" must be "an element" of § 246. U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).

Mendez objected to the PSR, asserting § 246 is not a COV under § 2L1.2. In addition to contending § 246 is not one of the enumerated crimes listed in the Guideline, he asserted it did not require intent to shoot at an individual. He also maintained § 246 is not divisible; and, in the alternative, divisibility should not affect enhancement. Mendez reasserted these contentions at sentencing.

The court overruled Mendez' objection and applied the 16-level COV enhancement to its calculation of the Guidelines sentencing range. After other adjustments, the court sentenced Mendez within the advisory sentencing range to 44-months' imprisonment.

II.

Because Mendez appeals only the enhancement, at issue is whether his conviction under California Penal Code § 246 qualifies as a COV under Guideline § 2L1.2. Although the Guidelines are advisory only post-Booker , the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States , 552 U.S. 38, 48–51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Where a defendant preserves error by objecting at sentencing, as Mendez did here, the court's findings of fact are reviewed for clear error; its application of the Guidelines, de novo . E.g. , United States v. Gomez – Alvarez , 781 F.3d 787, 791 (5th Cir. 2015). Along that line, this court reviews "de novo whether a prior conviction qualifies as a [COV] within the meaning of the Guidelines". United States v. Rodriguez , 711 F.3d 541, 548 (5th Cir. 2013) (en banc ).

During the pendency of this appeal, the Supreme Court rendered two decisive opinions on statutory interpretation for sentencing enhancement: Voisine v. United States , ––– U.S. ––––, 136 S.Ct. 2272, 195 L.Ed.2d 736 (2016) ; and Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). While both concerned the Armed Career Criminal Act, rather than the Guidelines, each has already been imported by our court for Guidelines analysis. See United States v. Uribe , 838 F.3d 667, 670 (5th Cir. 2016) ; United States v. Howell , 838 F.3d 489, 501 (5th Cir. 2016) ; United States v. Hinkle , 832 F.3d 569, 574 (5th Cir. 2016) ; United States v. Conley , No. 15–10550, 2016 WL 7187376, at *1 (5th Cir. 2016) (concerning a controlled-substance offense rather than a COV); United States v. Bryant , No. 14–11012, 2016 WL 5795772, at *1 (5th Cir. 2016). Mathis provides guidance on divisibility vel non and the modified categorical approach because "the primary focus of the Court's decision in Mathis was how to determine whether a statute is ‘divisible’ ". Hinkle , 832 F.3d at 574. In conducting that analysis, Voisine is instructive; it is "illuminating as to the backdrop against which the Sentencing Commission defined a ‘crime of violence’ as including ‘use’ of force against another person". Howell , 838 F.3d at 501. These two recent—and very welcome—Supreme Court decisions clarify long-debated interpretation of sentencing enhancement, and we are, of course, bound by them—even where our court ruled to the contrary previously. Hinkle , 832 F.3d at 574–75.

Again, for the COV enhancement to apply in this instance, "the use, attempted use, or threatened use of physical force against the person of another" must be an element of § 246. U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). The analytical method for determining whether a predicate offense merits COV sentencing-enhancement varies by whether the statute for the offense is divisible or indivisible. Mathis , 136 S.Ct. at 2249. A statute is divisible if it "list[s] elements in the alternative, and thereby define[s] multiple crimes". Id.

If the statute is indivisible, (containing "a single ... set of elements to define a single crime"), the sentencing court utilizes a categorical analysis. Id. at 2248. "The court then lines up that crime's elements alongside those of the generic offense and sees if they match." Id. If they match, or if the generic offense is broader, the enhancement is applicable. Id. at 2248–49.

If the statute is divisible, the Court has "approved the ‘modified categorical approach’ for use with statutes having multiple alternative elements". Id. at 2249 (citing Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ); see also United States v. Herrara – Alvarez , 753 F.3d 132, 138 (5th Cir. 2014) (specific to COV analysis). The modified categorical approach permits analysis to extend beyond statutory language:

[A] sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of. The court can then compare that crime, as the categorical approach commands, with the relevant generic offense.

Mathis , 136 S.Ct. at 2249 (internal citations omitted); see also United States v. Carbajal-Diaz , 508 F.3d 804, 810 (5th Cir. 2007) (specific to COV analysis).

A.

Our first inquiry is the divisibility vel non of § 246, which covers "any person who shall maliciously and willfully discharge a firearm at [, inter alia ,] an inhabited dwelling house, occupied building, [or] occupied motor vehicle". Cal. Penal Code § 246. Again, a statute is divisible if it "list[s] elements in the alternative, and thereby define[s] multiple crimes". Mathis , 136 S.Ct. at 2249. "The first task for a sentencing court faced with an alternatively phrased statute is ... to determine whether its listed items are elements or means." Id. at 2256. Therefore, we inquire whether the list of targets in § 246, including "inhabited dwelling house, occupied building, [or] occupied motor vehicle", provides multiple crimes, or merely lists alternative means for committing a single crime. Cal. Penal Code § 246.

"[I]f state law fails to provide clear answers, federal judges" may look to the record of the prior conviction; and if the indictment references "one alternative term to the exclusion of all others", divisibility is strongly suggested. Mathis , 136 S.Ct. at 2256–57. We are not aware of definitive California case law providing whether § 246's alternative items—inter alia , "an inhabited dwelling house, occupied building, [or] occupied motor vehicle"—constitute alternative means of committing a single offense. Persuasively, the California Supreme Court identified "shooting at an inhabited house" as an element of the § 246 offense, to the exclusion of the other targets. See People v. Ramirez , 45 Cal.4th 980, 89 Cal.Rptr.3d 586, 201 P.3d 466, 469 (2009) (identified two offense...